Citation Nr: 0122921
Decision Date: 09/20/01 Archive Date: 09/24/01
DOCKET NO. 96-34 586 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to a rating in excess of 30 percent for
generalized anxiety disorder with dysthymia.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Nottle, Counsel
INTRODUCTION
The veteran had active service from February 1985 to December
1985. Her claim comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 rating decision, in which
the St. Louis, Missouri, Regional Office (RO) continued the
10 percent rating assigned the veteran's generalized anxiety
disorder with dysthymia. In October 1997, the RO increased
the rating assigned this disability to 30 percent, and in
October 1998, the Board affirmed the RO's decision denying a
rating in excess of 30 percent for this disability.
The veteran appealed the Board's October 1998 decision to the
United States Court of Appeals for Veterans Claims (Court),
and in a Memorandum Decision dated August 2000, the Court
vacated the Board's decision and remanded the veteran's claim
to the Board for further development and readjudication. The
Court explained that the Board had improperly relied upon its
own judgment in deciding the veteran's claim and should have
instead obtained medical opinions differentiating
symptomatology of the veteran's service-connected psychiatric
disability from symptomatology of her nonservice-connected
disabilities and possibly pertinent records from the Social
Security Administration (SSA). The Court also explained that
the Board had failed to rule expressly on a raised claim of
entitlement to a total disability rating based on individual
unemployability (TDIU), and that because the TDIU claim was
inextricably intertwined with the claim for a rating in
excess of 30 percent for generalized anxiety disorder with
dysthymia, a Remand of both claims was necessary.
REMAND
The veteran claims that the 30 percent rating assigned her
psychiatric disability should be increased to reflect more
accurately the severity of her psychiatric symptomatology.
Additional development by the RO is necessary before deciding
the merits of the veteran's claim.
During the pendency of the veteran's appeal, the Veterans
Claims Assistance Act of 2000 (VCAA) became law and
implementing regulations were promulgated. See Veterans
Claims Assistance Act of 2000, 38 U.S.C. §§ 5103, 5103A (West
Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a)). The VCAA redefines VA's duties to notify a
claimant regarding the evidence needed to substantiate a
claim and to assist a claimant in the development of a claim.
The change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment of the VCAA and which are not final as of
that date. Where the law or regulations change after a claim
has been filed or reopened but before the administrative or
judicial appeal process is completed, the version of the law
or regulations most favorable to the appellant applies unless
Congress provides otherwise. Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1990).
In this case, the RO has not developed the veteran's claim
pursuant to the VCAA. Accordingly, on Remand, the RO should
take any action that is necessary to comply with the
notification and assistance provisions of the VCAA. For
instance, the RO should assist in obtaining any additional
pertinent medical information identified by the veteran. The
Board notes, in this regard, that the VCAA provides that, in
the case of a claim for disability compensation, VA shall
make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate a claim for a benefit
provided there is a reasonable possibility that such
assistance will aid in substantiating the claim.
The Board also notes that the VCAS provides that VA's duty to
assist includes providing the claimant a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. See
38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4), 66 Fed. Reg.
45,620 (Aug. 29, 2001).
As the Board noted in its October 1998 decision, the veteran
has a personality disorder of significant dimension. In its
August 2000 Memorandum Decision, the Court found that,
although the veteran underwent three VA examinations during
the pendency of her appeal, the examiners who conducted those
examinations failed to clearly dissociate the symptomatology
of the veteran's nonservice-connected personality disorder
from that of her service-connected generalized anxiety
disorder with dysthymia. Based on that finding, the Court
determined that a Remand was required to afford the veteran
another psychiatric examination, during which a VA examiner
could make another attempt to determine the level of
impairment caused solely by the veteran's generalized anxiety
disorder with dysthymia. In its Memorandum Decision, the
Court also mentioned that there were records from SSA that
needed to be obtained in support of the veteran's claim.
Based on the Court's finding that the aforementioned evidence
is needed before the Board can decide the veteran's claim,
the Board remands this claim to the RO for the purpose of
obtaining this evidence.
In addition, because this claim is being remanded for other
purposes, the veteran should be given an opportunity to
identify and authorize the release of any other pertinent,
outstanding records that may be missing from her claims file
and to present further argument in support of her claim. The
veteran has alleged that there are outstanding
hospitalization reports dated in 1991 and 1992 that need to
be obtained, but the claims file currently contains multiple
hospital reports dated during the time frame identified. On
remand, the RO should determine whether the veteran is
referring to other hospitalization reports that have not yet
been obtained, and if so, obtain and associate those reports
with the claims file.
Finally, in its August 2000 Memorandum Decision, the Court
found that the Board had failed to rule expressly on a raised
claim of entitlement to TDIU, and that, because this raised
claim and the claim for a higher rating were intertwined,
both of these claims needed to be remanded. Consistent with
the Court's holding in this regard, once the RO has
accomplished the aforementioned development and readjudicated
the veteran's claim for an increased rating, the RO should
decide in the first instance the veteran's claim for TDIU.
This case is, therefore, REMANDED to the RO for the following
development:
1. The RO should contact the veteran and
request her to provide the names and
addresses of all health care providers,
VA and private, who have treated her for
her psychiatric disability and whose
records have not yet been obtained.
2. After securing any necessary
authorizations, the RO should obtain and
associate with the claims file any
outstanding medical evidence the veteran
identifies as being pertinent to her
claim, and which are not already in the
claims file, including, if appropriate,
reports of the veteran's psychiatric
hospitalizations in 1991 and 1992.
3. The RO should also obtain and
associate with the claims file copies of
the medical records on which SSA relied
in September 1995 in determining that the
veteran was entitled to disability
benefits.
4. The RO should afford the veteran a VA
psychiatric examination by an examiner
who has not yet evaluated the veteran for
the purpose of ascertaining the level of
social and industrial impairment caused
solely by the veteran's service-connected
generalized anxiety disorder with
dysthymia. Prior to the examination, the
RO should provide the examiner with the
veteran's claims file and a separate copy
of this Remand for review. After
conducting a thorough evaluation,
including any indicated studies, the VA
examiner should: (1) identify all
symptoms of the veteran's service-
connected psychiatric disability; (2)
disassociate all symptoms of the
veteran's personality disorder and other
nonservice-connected disorders from
symptoms of her service-connected
psychiatric disability (if impossible,
the examiner should so indicate in his
report); (3) provide a multiaxial
diagnosis based on the current DSM-IV
diagnostic criteria and a Global
Assessment of Functioning Score that is
attributable to the veteran's service-
connected psychiatric disability only;
(4) opine whether the veteran's service-
connected psychiatric disability, alone,
causes mild, definite, considerable,
severe or total impairment, or precludes
her from engaging in substantially
gainful employment; and (5) estimate the
degree to which the veteran's service-
connected psychiatric disability
contributes to her overall impairment.
The VA examiner should provide the
complete rationale on which his or her
opinion is based.
5. Following the above development, the
RO should review the examination report
to determine whether it complies with the
previous instruction. If the report is
deficient in any regard, immediate
corrective action should be taken.
6. Thereafter, the RO should undertake
any other development necessary to comply
with the notification and assistance
provisions of the VCAA.
7. The RO should then readjudicate the
veteran's increased rating claim and
initially consider the veteran's raised
TDIU claim based on all of the evidence
of record. If the RO denies the
veteran's claim for an increased rating,
it should provide the veteran and her
representative a supplemental statement
of the case, which cites all regulations
pertinent to the veteran's claim, and an
opportunity to respond thereto before the
case is returned to the Board for
appellate review.
The purposes of this REMAND are to ensure the veteran due
process of law and to obtain additional medical information.
No inference should be drawn regarding the ultimate
disposition of this appeal. The veteran may submit
additional argument or evidence in connection with her
appeal; however, she is not required to act until she is
otherwise notified. Kutscherousky v. West, 12 Vet. App. 369,
372 (1999).
Bruce Kannee
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).